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en-usTechdirt.https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Thu, 17 Aug 2017 18:58:00 PDTAs HBO Screams About GoT Episodes Leaking From A Hack, HBO Leaks Next GoT Episode EarlyTimothy Geignerhttps://www.techdirt.com/articles/20170816/09284638011/as-hbo-screams-about-got-episodes-leaking-hack-hbo-leaks-next-got-episode-early.shtml
https://www.techdirt.com/articles/20170816/09284638011/as-hbo-screams-about-got-episodes-leaking-hack-hbo-leaks-next-got-episode-early.shtml
I love HBO's Game Of Thrones. I hate everything we have to write about it, however, because the stories are typically dumb in the usual ways that stories are dumb here at Techdirt. From HBO happily playing the evil villain in protecting the show's IP in the most overly-protectionist manner possible, to HBO screaming about the show being heavily pirated while everyone else comments about how good a thing that actually is, all the way up to the occasional overt hacking that occurs, where episodes from the show leak early, everybody freaks out, and then HBO and GoT go on to rake in tons of eyeballs and money anyway. One of these hacks just occurred, as you may know, resulting in a ransom not being paid to the hackers, who were then eventually arrested. While episode four of the current season did indeed get leaked, it wasn't the hackers who leaked it, but someone at an HBO distribution partner. So HBO screams about hacks while someone with in its own house is leaking episodes.

Trouble continues for HBO as another episode of the popular Game of Thrones series has just leaked online, days ahead of the official premiere. Copies of the sixth episode of the current season, titled ‘Death is the Enemy,’ are currently circulating on various streaming portals, direct download, and torrent sites.

At the moment it’s not confirmed how the leak came about but some suggest that it was leaked by HBO itself in Spain. Several people have posted screenshots and videos that suggest it was made public by HBO unintentionally.

With no counter-narrative yet from HBO, which you'll recall loves to scream about hacks and piracy, the accidental leak from HBO is the only explanation on offer as of the time of this writing. And, look, mistakes like this happen. The point of this post isn't to point the finger and laugh at HBO for accidentally leaking an episode itself.

No, the point is that these leaks just don't matter. The show continues to rack up the same astounding viewership numbers, leaks and all. It's wildly successful. It has been spun off into board games and all manner of merchandise. It's to the point that nobody batted an eye when HBO refused to pay the hackers' ransom to not release the episodes early. There would be no point. Hell, when the first four episodes of season five of the show were leaked early, that season broke the show's viewership records.

So chill, HBO. Leaks from hackers, leaks from distributors, and leaks from your own offices aren't going to bring the piracy dragons to your doors to destroy your keep.

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]]>fine-everything's-finehttps://www.techdirt.com/comment_rss.php?sid=20170816/09284638011Thu, 17 Aug 2017 15:38:00 PDTEFF Pioneer Awards: Chelsea Manning, Annie Game... And MeMike Masnickhttps://www.techdirt.com/articles/20170816/22241738014/eff-pioneer-awards-chelsea-manning-annie-game-me.shtml
https://www.techdirt.com/articles/20170816/22241738014/eff-pioneer-awards-chelsea-manning-annie-game-me.shtml
So here's a bit of nice news. Yesterday EFF announced this year's Pioneer Award winners, and they included Chelsea Manning, Annie Game... and me. I'm humbled to win the award -- but especially to be included with Chelsea and Annie, both of whom have gone to amazing lengths, and often sacrificed tremendous amounts, to do what they believe in to help make the world a better place. I just write about stuff. If you read Techdirt, you probably know about Chelsea Manning already -- we've certainly written about her, what she's done for this country, and the travesty of the charges and punishment she faced. Frankly, it's a joke to put me in a list with Chelsea Manning. We don't belong in the same conversation, let alone getting the same award. As for Annie Game -- you might not know the name, but she's a force to be reckoned with as well. She runs IFEX, which is on the front lines around the globe -- especially in repressive authoritarian-led countries -- fighting to protect a press that has few legal protections and standing up for free expression and access to information in very real and tangible ways (and sometimes in dangerous environments). I aspire to do work that will someday put me on a level with the things both Chelsea and Annie have done -- but in the meantime, I'm happy to share this award with them.

If you have not been, the Pioneer Awards event is always a blast, so if you're in the area on September 14th, please consider coming out to the ceremony. Tickets help support EFF, and I think we all know just how much amazing work EFF has done over the years.

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]]>neathttps://www.techdirt.com/comment_rss.php?sid=20170816/22241738014Thu, 17 Aug 2017 13:34:00 PDTNorth Carolina Election Agencies First Learned They'd Been Hacked From Leaked Documents Published By The InterceptTim Cushinghttps://www.techdirt.com/articles/20170814/13504037994/north-carolina-election-agencies-first-learned-theyd-been-hacked-leaked-documents-published-intercept.shtml
https://www.techdirt.com/articles/20170814/13504037994/north-carolina-election-agencies-first-learned-theyd-been-hacked-leaked-documents-published-intercept.shtml
At the time, the documents leaked by NSA contractor Reality Winner -- showing Russian interference in the recent election -- didn't seem to be of much importance. They showed something that had long been suspected, but also showed the NSA performing the sort of surveillance no one really disapproves of. The documents were in the public's interest, but weren't necessarily of the "whistleblower" variety.

That aspect of the documents hasn't changed, but public interest in the unauthorized disclosure certainly has. In a post for Emptywheel, Marcy Wheeler takes on an NPR story about actions taken by electoral agencies as a result of the leak.

[S]usan Greenhalgh, who’s part of an election security group called Verified Voting, worried that authorities underreacted. She was monitoring developments in Durham County when she saw a news report that the problem pollbooks were supplied by a Florida company named VR Systems.

“My stomach just dropped,” says Greenhalgh.

She knew that in September, the FBI had warned Florida election officials that Russians had tried to hack one of their vendor’s computers. VR Systems was rumored to be that company.

Now, there's an investigation underway in North Carolina, linked directly to the documents leaked by Reality Winner. Josh Lawson, general counsel for the state's board of elections, said it first learned about the hacking from the Intercept's article.

Which makes you wonder when the federal government was going to get around to notifying affected state agencies. When local agencies are learning about Russian hacking from leaked documents rather than straight from the source, the downward flow of pertinent information seems to be more than a little broken.

Not that this news will do Winner any good as she heads to court. As noted by Ed Snowden earlier, and reaffirmed here by Marcy Wheeler, any positive outcomes resulting from leaked documents can't be raised by the defendant.

Last week, Magistrate Judge Brian Epps imposed a protection order in her case that prohibits her or her team from raising any information from a document the government deems to be classified, even if that document has been in the public record. That includes the document she leaked.

The protective order is typical for leak cases. Except in this case, it covers information akin to information that appeared in other outlets without eliciting a criminal prosecution. And more importantly, Winner could now point to an important benefit of her leak, if only she could point to the tie between her leak and this investigation in North Carolina.

With the protection order, she can’t.

This is generally how things go in espionage cases. This is what Snowden detractors ignore when they argue he should just return home and face a "fair trial." There are no fair trials in espionage cases. In Winner's case, the order is so broad it forbids her legal reps from discussing any classified document or any document they believe might be classified (or derived from classified documents), even if those documents have been leaked and published by journalistic entities.

The info in the leaked documents led to an investigation. This may excuse the leak in the minds of those whose first encounter with evidence of Russian hacking came from a site known for publishing leaks, rather than the federal government performing the surveillance that uncovered it. But this is of no use to Reality Winner, or any leaker in her position. No matter how much good may result from unauthorized disclosures, the government only cares about the authorization.

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]]>accelerated-disclosurehttps://www.techdirt.com/comment_rss.php?sid=20170814/13504037994Thu, 17 Aug 2017 11:53:00 PDTPalantir's Law Enforcement Data Stranglehold Isn't Good For Police Or The PolicedTim Cushinghttps://www.techdirt.com/articles/20170815/14235738007/palantirs-law-enforcement-data-stranglehold-isnt-good-police-policed.shtml
https://www.techdirt.com/articles/20170815/14235738007/palantirs-law-enforcement-data-stranglehold-isnt-good-police-policed.shtml
Palantir has made government surveillance big business. It's a multi-billion dollar company built mainly on government contracts. Its tech prowess and computing power have made it the go-to company for data harvesting and many of its most loyal customers are local law enforcement agencies.

In one case, files marked as sensitive by a Long Beach drug squad detective were still accessible by other officers who shouldn't have had access. Multiple emails to Palantir failed to resolve the issue. Making it worse was the fact the problem couldn't be contained in-house. When agencies sign up for Palantir services, they're given heavily-discounted rates if they allow their data to be shared with other law enforcement agencies. Detectives hoping to protect sensitive sources and undercover cops from outside access were finding out their employers had signed that option away in exchange for cheaper initial pricing.

That's just the beginning of Palantir problems uncovered by these public document requests:

In the documents our requests produced, police departments have also accused the company, backed by tech investor and Trump supporter Peter Thiel, of spiraling prices, hard-to-use software, opaque terms of service, and “failure to deliver products” (in the words of one email from the Long Beach police). Palantir might streamline some criminal investigations—but there’s a possibility that it comes at a high cost, for both the police forces themselves and the communities they serve.

These documents show how Palantir applies Silicon Valley’s playbook to domestic law enforcement. New users are welcomed with discounted hardware and federal grants, sharing their own data in return for access to others’. When enough jurisdictions join Palantir’s interconnected web of police departments, government agencies, and databases, the resulting data trove resembles a pay-to-access social network—a Facebook of crime that’s both invisible and largely unaccountable to the citizens whose behavior it tracks.

Palantir encourages the use of predictive policing. By analyzing data from past incidents and arrests, agencies are supposed to be able to identify "hot spots" where criminal activity is likely to occur and step up patrols in those areas. There are several problems with this approach, not the least of which is the latent encouragement of profiling by officers patrolling these areas, who are likely to view everyone they approach as a criminal suspect, rather than someone who just lives or works in a software-generated "hot spot."

But the problems go deeper than that with Palantir involved. Predictive policing is data-driven. But it is also a victim of circular logic. If predictive policing doesn't appear to be having much effect, the usual solution is to feed it more data. Palantir's predictive algorithms are particularly data-hungry. Officers patrolling hot spots are required to fill out heavily-detailed encounter reports, detailing everything they can about the person spoken to, as well as anything else observed in that area. This is all fed into Palantir's predictive policing software.

At this point, the gathering of data became so streamlined, law enforcement agencies have begun allowing Palantir to swallow up other law enforcement databases -- namely CLETS (California Law Enforcement Telecommunications Systems) -- and allow it to crunch idata into something actionable. Sure enough, Palantir's software has coughed up… something. But tips as bad as these should come from unvetted informants and questionable eyewitnesses, not multimillion dollar programs.

In February 2013, JRIC was tasked with tracking down Christopher Dorner, an ex-LAPD officer who had embarked on a series of shootings targeting law enforcement officers. The effort involved dozens of agencies across the state. “We used Palantir extensively to address that [and] were active 24/7 until he was caught or killed,” remembers Jackson. “We found that processing clues was a big challenge.”

In fact, on two separate occasions, police shot at trucks misidentified as belonging to Dorner, injuring three civilians.

A larger problem, at least in terms of personal privacy, is the potential for abuse. Smaller data silos meant unauthorized use/access of law enforcement databases could at least be somewhat mitigated by the limitations of the database itself. Now, with multiple agencies tied together through Palantir's data sharing (along with its swallowing of existing law enforcement databases), those wishing to abuse their access have a much larger dataset to dig through.

In the end, someone has to pay for all this data. And, man, will they ever. Obtained documents and interviews with officials show Palantir seduces law enforcement with low introductory prices before ratcheting up the fees once they have nowhere else to go.

According to LA County contracts, when JRIC committed to the full Palantir system in October 2011, the LASD paid around $122,000 each for 20 Palantir “cores”: packages of already-configured computer servers bundled with preinstalled software. That price was approximately $19,000 less per core than Palantir charged the federal government. According to paperwork for the pilot program, LASD received a “special discount because it [would] be the first in the LA basin to use this software.”

[...]

Palantir’s customers must rely on software that only the company itself can secure, upgrade, and maintain. Although the letter noted Palantir had not provided JRIC with any of its requested (but unspecified) metrics by spring 2016, the company is set to receive annual maintenance payments of nearly $2.5 million from the fusion center through the spring of 2019.

That's taxpayer money being fed to a single-source contractor whose end goal is to tie everyone to everyone else using steep discounts predicated on data sharing. And it appears to be drowning in data, with no customer able to point to positive, real-world changes that can be conclusively linked to Palantir's law enforcement software. But it's too late to do anything about it. In California, law enforcement agencies bought cheap and surrendered control. It's likely happening elsewhere in the nation, but the paper trail has yet to be exposed. Citizens, of course, are the ones paying for all of this, not only with their tax dollars but with their individuality, having been reduced to data points in a stream of alleged criminal activity held by a private party that's probably already imagining secondary markets for its law enforcement data stores.

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]]>all-the-problems,-none-of-the-accountabilityhttps://www.techdirt.com/comment_rss.php?sid=20170815/14235738007Thu, 17 Aug 2017 10:46:00 PDTFormer FCC Commissioner Tries To Claim Net Neutrality Has Aided The Rise Of White SupremacyKarl Bodehttps://www.techdirt.com/articles/20170817/09173138017/former-fcc-commissioner-tries-to-claim-net-neutrality-has-aided-rise-white-supremacy.shtml
https://www.techdirt.com/articles/20170817/09173138017/former-fcc-commissioner-tries-to-claim-net-neutrality-has-aided-rise-white-supremacy.shtml
When last we checked in with former FCC Commissioner Harold Furchtgott-Roth, he was rather grotesquely using the Manchester bombing to try and launch a completely bizarre attack on net neutrality over at the Forbes op-ed pages. Furchtgott-Roth, who served as an FCC Commissioner from 1997 through 2001, now works at the Hudson Institute, which not-coincidentally takes money from large incumbent broadband providers. The Hill, Forbes and other similar outlets then publish not-so-objective "analysis" from such individuals without really disclosing the money or motives driving the rhetoric.

In his missive for hire last May just days after the Manchester attack, Furchtgott-Roth tried to argue that protecting net neutrality somehow aids and abets terrorism and murder:

"A sensible question is why civilized governments do not seek to deprive terrorists of unfettered access to the Internet...Sadly, here in America, limiting access to the Internet would be illegal under the euphemistic term “network neutrality,” the two-year-old experiment in federal regulation of the Internet...To its supporters, network neutrality is a bulwark of civilization. But network neutrality is also a shield for terrorists who seek to destroy civilization."

As we noted then, Furchtgott-Roth doesn't appear to have even the remotest understanding of how the internet or net neutrality works, and conflated the issue of net neutrality with his own deep-rooted desire to see greater government censorship of the internet. That lust for censorship runs so deep, Furchtgott-Roth envisioned a future where ISPs could compete with one another (as if that's a thing) by how heavily they censor internet content:

"Under network neutrality, broadband companies--such as AT&T, Charter, Comcast, Sprint, T-Mobile, and Verizon—are prohibited from discriminating against any lawful websites or content. There is no clear distinction between lawful and unlawful websites and content. The net result is a broadband company could and likely would be sued for blocking websites housing information about recruitment and organization for ISIS, Al Qaeda, the Ku Klux Klan, or other terrorist groups. It is also illegal to block content that instructs viewers on how to manufacture explosives such as nail bombs."

Again, that has nothing to do with net neutrality. Net neutrality encourages the internet as a level playing field free of the anti-competitive or editorial meddling of giant telecom conglomerates comfortable in uncompetitive markets. And while ISPs are banned from blocking legal websites under the rules, few ISPs have interest in outright blocking of content in the first place due to political and PR backlash. In other words, eliminating net neutrality would do nothing to expedite Furchtgott-Roth's vision of a filtered internet anyway. ISPs simply aren't interested, and individuals have every right to avoid or filter websites as they see fit.

The former FCC Commissioner turned think tank "expert" simply conflated two completely unrelated issues (either intentionally for effect or unintentionally out of confusion) to try to demonize popular net neutrality protections. Apparently undaunted by his previous run in with extreme myopia and insensitivity, Furchtgott-Roth has since published a second, horribly ill-timed screed against net neutrality over at Forbes, this time blaming net neutrality for the resurgence of neo-nazis and white supremacy:

"In many countries around the world, national governments block much content and decide which websites its citizens can access. In the United States, we should allow individuals, not the government, to make those decisions. Broadband companies, including those currently regulated by network neutrality rules, should be allowed to offer various filtered services and filtering technologies to allow individuals to avoid content that they would rather not see, or have their families see. Families that want to block Daily Stormer and its ilk from the Internet should be allowed to purchase such a service directly from any business, and not have the FCC tell them that such a service is unlawful in the name of network neutrality."

That's an even deeper layer of bullshit than Furchtgott-Roth's original treatise. There's absolutely nothing in the net neutrality rules preventing individuals from using any filtering technology they'd like at any time under something known as personal responsibility. At no point has the FCC ever indicated that families can't purchase any filtering or parental control service they want. This is a completely made up and bizarre claim, made with total insensitivity to the recent attacks in Charlottesville, all to try to demonize some basic, popular consumer protections for the open internet.

At this point it feels like Furchtgott-Roth is just sitting around waiting for tragedies so he can blame them on the pure evil that is net neutrality. It would be lovely if he would fucking stop that.

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]]>dumb-argument-hall-of-famehttps://www.techdirt.com/comment_rss.php?sid=20170817/09173138017Thu, 17 Aug 2017 10:40:00 PDTDaily Deal: Raspberry Pi Mastery BundleDaily Dealhttps://www.techdirt.com/articles/20170817/09121038016/daily-deal-raspberry-pi-mastery-bundle.shtml
https://www.techdirt.com/articles/20170817/09121038016/daily-deal-raspberry-pi-mastery-bundle.shtml
Raspberry Pi offers nearly endless programming and computing possibilities. The $34 Raspberry Pi Mastery Bundle offers 8 courses (Raspberry Pi not included) to help you learn the basics of how to program and build using the Raspberry Pi. You'll learn how to program the small LCD screen and display dynamic data, how to create a fully functional computer running on the Raspbian operating system, how to to build a basic robot and control it, how to use Raspberry Pi to mine Bitcoin, and much more.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

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]]>good-deals-on-cool-stuffhttps://www.techdirt.com/comment_rss.php?sid=20170817/09121038016Thu, 17 Aug 2017 09:42:00 PDTCrowdfunded Billboards Shame Politicians For Selling You Out On Net NeutralityKarl Bodehttps://www.techdirt.com/articles/20170816/11203238013/crowdfunded-billboards-shame-politicians-selling-you-out-net-neutrality.shtml
https://www.techdirt.com/articles/20170816/11203238013/crowdfunded-billboards-shame-politicians-selling-you-out-net-neutrality.shtml
Earlier this year you might recall that lawmakers voted along party lines to kill consumer broadband privacy protections. The rules, which large ISPs whined incessantly about, were relatively basic; simply ensuring that ISPs couldn't collect or sell your personal data without being transparent about it and providing working opt out tools. The rules were only proposed after ISPs repeatedly showed they weren't able to self regulate on this front in the face of limited competition, from AT&T's plan to charge more for privacy, to Verizon getting busted for covertly modifying wireless packets to track users without consent.

After a massive lobbying push, the usual loyal ISP allies like Tennessee Rep. Marsha Blackburn rushed to help free these incumbent duopolists from the terror of accountability. In response, many of these lawmakers faced a naming and shaming campaign by consumer advocacy group Fight for the Future, which crowdsourced the funding of billboards erected in their home districts clearly highlighting how they took ISP campaign contributions in exchange for selling consumer privacy down river:

Of course many of those same lawmakers have, as instructed, now shifted their gaze toward supporting the FCC's plan to ignore the public and dismantle net neutrality protections. As a plan B, most of them are being prodded by ISPs to help craft a new net neutrality law. One that pretends to solve the problem, but will be written by industry lawyers to intentionally include so many loopholes as to be arguably useless. This cacophony of self-serving dysfunction again highlights how AT&T, Verizon, Comcast and Charter campaign contributions trump the public interest on a routinely grotesque scale.

Hoping to piggyback on its privacy campaign, Fight for the Future has now similarly-crowdfunded new billboards shaming lawmakers that have breathlessly supported killing popular net neutrality protections. Which politicians are shamed is being determined by a congressional scorecard, which tracks just how cozy politicians are with incumbent telecom duopolies. Needless to say, Marsha Blackburn again took top honors and is being featured again in the group's latest effort:

The group is hoping that this naming and shaming campaign will help shake these lawmakers' constituents out of their apparent slumber:

"Politicians need to learn that they can’t attack free speech on the Internet and expect to get away with it,” said Evan Greer, campaign director of Fight for the Future (pronouns: she/hers), “Voters from across the political spectrum all agree that they don’t want companies like Comcast and Verizon dictating what they can see and do online. No one is fooled by corrupt lawmakers’ attempts to push for bad legislation while they strip Internet users of protections at the FCC. Hundreds of people donated to make these billboards possible. When you come for the Internet, the Internet comes for you.”

The problem, as always, is that folks like Marsha Blackburn have been selling out their constituents for years and are consistently re-elected anyway. Blackburn was a major supporter of SOPA, and is the cornerstone of an AT&T stranglehold over Tennessee's state legislature that's so severe, AT&T lawyers are quite literally allowed to write protectionist state laws protecting the company from anything that even smells like competition. Tennessee is, not at all coincidentally, one of the least connected states in the union for just this reason.

Of course there's any number of reasons for why folks like Blackburn are immune to accountability efforts. Gerrymandering and voter suppression certainly plays a role. But so too does concerted disinformation campaigns that frame kissing Comcast's ass as a heroic quest for freedom, and important technology issues of interest to all (like oh, the internet fucking working) as somehow partisan. Still, you'd like to think that with enough elbow grease and repetition, even folks like Blackburn can't be permanently immune from something at least vaguely resembling accountability.

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]]>something-resembling-accountabilityhttps://www.techdirt.com/comment_rss.php?sid=20170816/11203238013Thu, 17 Aug 2017 06:36:00 PDTAspiring Actor Forges Court Order To Delist Content, Gets Busted By Judge, Forges Court Order To Delist Article About Contempt ChargesTim Cushinghttps://www.techdirt.com/articles/20170815/17321338009/aspiring-actor-forges-court-order-to-delist-content-gets-busted-judge-forges-court-order-to-delist-article-about-contempt.shtml
https://www.techdirt.com/articles/20170815/17321338009/aspiring-actor-forges-court-order-to-delist-content-gets-busted-judge-forges-court-order-to-delist-article-about-contempt.shtml
Eugene Volokh (along with Public Citizen's Paul Levy) has made a cottage industry of sniffing out bogus/fraudulently-obtained court orders demanding the delisting of unflattering content. Much of this seemed to be the work of desperate reputation management "gurus," who had over-promised and under-delivered in the past. Abusing the DMCA process only goes so far. Sometimes you need to lie to judges to get things done.

Sometimes you just need to pretend you're the judge. Convicted sex offender Abraham Motamedi forged a court order awarding himself legal fees and the delisting of content indicating he was a convicted sex offender. When called on it, Motamedi claimed he had nothing to do with it while also claiming the order was legit. These two viewpoints cannot be resolved logically. If it was legit, Motamedi would have had to appear in court to obtain them. If it wasn't legit, then assertions otherwise won't suddenly make a nonexistent case appear on a Michigan court's docket.

Forgeries continue, as Eugene Volokh reports. A man who attempted to use a forged court order to vanish content from the internet appears to have doubled down.

In April, I mentioned two prosecutions for such forgeries, including a prosecution of one Garner Ted Aukerman, who was convicted of contempt of court based on a judge’s finding that he was responsible for “a fraudulent court order [that] has never been entered by [the] court”:

"Apparently Mr. Aukerman has taken [an] order setting the matter for hearing and deleted the middle section of that order in which he generated [in context, I think this means “inserted" -EV] the detail concerning the court’s findings and orders. A hearing was never held, those findings were never made and the order is completely fraudulent."

Perhaps no layperson understands the flow of legal documents quite like a vexatious pro se litigant. By "understand," I mean, has at least a passing familiarity with their general appearance and what they should contain. Still, even the most vexatious of litigants isn't going to be able to produce a fake court order targeting actual legal experts and get away with it.

Garner Aukerman apparently tried to muddle his judicial interlopment by trying to make the fake court order look like it was part of Aukerman's criminal prosecution. Aukerman's case has a sealed docket which makes it a little tougher to determine which of the several documents accompanying his takedown request doesn't belong. Unfortunately for Aukerman, his supposed delisting order confuses two legal issues in a way no real judge would.

The first part of the order provides for the sealing of criminal records after a certain amount of time has passed. This is legitimate. But the order goes on to demand the "sealing" of Volokh posts and posted documents about Aukerman's past bogus legal work, calling them "defamatory." Well, there are defamation cases and post-release criminal record expungement, but they aren't interchangeable and no judge is going to randomly declare some internet content to be defamatory for the hell of it while reminding a convict of his expungement rights.

Even if that part were struck, post-release expungement would only remove the government's official records pertaining to Aukerman's conviction. It has no power to demand the rest of internet participate in the expungement. There's no right to be forgotten law in the United States and, for better or worse, the internet tends to remember things long past the point the government itself has officially forgotten about them.

Volokh contacted the issuing court and discovered (to no one's surprise) the court hadn't actually issued this order. He also spoke to Aukerman, who claimed what he sent to Google was nothing more than a proposed order. Even if true, there's no point submitting a proposed order because no one's under any legal obligation to do anything until a judge approves it... unless the real point is to try to push one past Google's takedown review team and hope it doesn't notice the obvious fakery.

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]]>love-to-be-wrong-on-the-internet-all-the-timehttps://www.techdirt.com/comment_rss.php?sid=20170815/17321338009Thu, 17 Aug 2017 03:34:00 PDTFOIA Lawsuit Filed Over DOJ Data Complainant Is Pretty Sure Doesn't Even ExistTim Cushinghttps://www.techdirt.com/articles/20170814/12194937993/foia-lawsuit-filed-over-doj-data-complainant-is-pretty-sure-doesnt-even-exist.shtml
https://www.techdirt.com/articles/20170814/12194937993/foia-lawsuit-filed-over-doj-data-complainant-is-pretty-sure-doesnt-even-exist.shtmlBenjamin Wittes of the Lawfare blog has filed a FOIA lawsuit against the DOJ, hoping to force the government to put its documents where the president's mouth is. [h/t Pwn All The Things]

“According to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our country.”

But what data? That's what Wittes is seeking. As he pointed out in April, it appears the president generated this assertion completely out of firing synapses and airborne vibrations.

I'm going to be very blunt here: I not only believe that the White House made up "alternative facts" about the substance of this matter in a Presidential address to a Joint Session of Congress, I don't believe that the National Security Division of the Justice Department provided any data or analysis to the White House that could reasonably be read to support the President's claim. In other words, I believe the President was lying not merely about the underlying facts but about his own Justice Department. Or, in the alternative, I believe it's possible that the Office of the Attorney General may have supported the White House's claim. But I think it extraordinarily unlikely that the folks at NSD actually provided data in support of this presidential statement.

Other authors at Lawfare examined the claim in detail, finding that when people extradited to America to face charges were excluded from the count, the ratio of foreign-born terrorism convicts dropped to 18-21% of the total -- not anywhere near a "vast majority."

Beyond that, there's likely zero data available to support Trump's claim. Wittes notes the DOJ doesn't actually track where convicts are born, and certainly doesn't do so when foreigners are booted from the country by immigration enforcement, only to be dragged back to face criminal charges.

Wittes filed a FOIA request for the numbers the DOJ supposedly "provided" to the president. So far, he's heard nothing back. His requests have been acknowledged but no further processing has been done, not even a determination as to whether he'd qualify for a fee waiver. Now, he's suing [PDF].

Wittes refers to this as the "friendliest lawsuit ever," given that it's not being fired off in hopes of liberating documents the DOJ would rather not part with, but instead to give the DOJ an opportunity to state -- on the record -- that it has none of the information Trump claimed was handed over to him. It would give the DOJ a way to contradict the president's claims without looking like it's intentionally undermining the president's assertions. Considered from this angle, it might be the sort of lawsuit the DOJ might welcome -- although if it was truly interested in disputing the president's statement, it might have chosen to provide Wittes with a more substantive response, rather than wait until it became a problem for the judiciary.

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]]>press-SEND-to-undermine-presidential-credibilityhttps://www.techdirt.com/comment_rss.php?sid=20170814/12194937993Wed, 16 Aug 2017 18:59:00 PDTAs A Streaming Future Looms, ESPN Is Damned If It Does, Damned If It Doesn'tKarl Bodehttps://www.techdirt.com/articles/20170815/11444638006/as-streaming-future-looms-espn-is-damned-if-it-does-damned-if-it-doesnt.shtml
https://www.techdirt.com/articles/20170815/11444638006/as-streaming-future-looms-espn-is-damned-if-it-does-damned-if-it-doesnt.shtml
So for years we've examined how executives at ESPN completely whiffed at seeing the cord cutting revolution coming, and personified the industry's denial that a massive market (r)evolution was taking place. As viewers were beginning to drift away from traditional cable and erode revenues, ESPN executives were busy doubling down on bloated sports contracts and expensive Sportscenter set redesigns. Only once ESPN lost 10 million viewers in just a few years did executives finally acknowledge that cord cutting was a problem, though they subsequently have tried to downplay the threat at every opportunity.

The question now is how to fix that problem. ESPN's first step was to try and save costs by firing oodles of on-air talent, but not the executives that failed to navigate this sea change. That has since been followed by ESPN-owner Disney recently proclaiming it would be offering two direct to consumer streaming platforms -- one stocked with Disney and Pixar fare, and the other being a direct to consumer ESPN product. During a recent earnings call, Disney CEO Bob Iger verbalized the company's slow epiphany in the face of cord cutting:

"We’ve got this unbelievably passionate base of Disney consumers worldwide that we’ve never had the opportunity to connect with directly other than through the parks,” Iger said. “It’s high time we got into the business to accomplish that.”

Iger acknowledged that the decision to act was spurred by the disruption in the traditional TV eco-system that has been rocking ESPN for the past few years. But Disney’s blue-chip brands give them a leg up in taking a radical new approach to reaching consumers.

“It’s not just a defensive movie, it’s an offensive move,” Iger said.

Granted it's not really playing offense when you only react after worries about cord cutting and ratings slides causes a $22 billion valuation hit in just a few days, something Disney experienced last year. Still, it's good to see Disney pull its head out of the sand and embrace the idea of giving consumers what they want, even if the move is painfully belated and under-cooked. The problem for ESPN specifically, as many have been quick to point out, is that the company is still stuck between a rock and a hard place in terms of navigating the transition to streaming -- even if it does everything right (which it won't).

There's plenty of reasons for that, the biggest being that streaming simply can't be as profitable as the long-standing practice of forcing cable TV customers on to bloated bundles filled with channels (like ESPN) that they may not want. ESPN currently makes $7.21 for each cable TV subscriber, many of which pay for ESPN begrudgingly. One survey found that 56% of ESPN viewers would ditch the channel if it meant saving that money off of their monthly bill. Fear of losing those customers was one of the reason ESPN sued Verizon when the company tried to take ESPN out of its core TV bundle.

And while ESPN may now be technically doing the right thing in finally offering a direct-to-consumer streaming product, such an offering will only aid to expedite viewer defections, while ESPN's sports licensing costs remain the same:

"A streaming service, while it might attract sports fans who have cut the cord, won’t solve ESPN’s profit problems. Instead it will exacerbate them. Why? Because ESPN will continue to lose the millions upon millions of cable subscribers who pay for it but never watch it. Losing $7.21 from each non-watcher is going to be a revenue killer. There is no possible way the universe of sports fans who want ESPN can make up that revenue, even if they’re charged more for a streaming service."

Traditionally, many cable and broadcast companies have tried to give the impression of adaptation by launching a streaming service, then saddling it with all manner of caveats to prevent existing, traditional cable TV customers from downgrading to the cheaper, more flexible streaming option. This really never works, but it looks like the path Iger and Disney are going to follow when it comes to ESPN's latest streaming venture:

"To make matters worse, Disney appears to be planning a streaming service that even the most rabid sports fan will be reluctant to pay for. All the good stuff — big-time college football, professional basketball, the Monday night National Football League game — will remain exclusively on ESPN’s cable channels. The streaming service will get, well, other things. It’s pretty clear that Iger is still trying to protect Disney’s legacy cable business, and that his move to the internet is not exactly a wholehearted embrace."

In other words, ESPN's epiphany and transition isn't quite as profound as many are suggesting, and ESPN still somehow believes it can control the rate of evolution; a fool's errand. Many industry insiders also have told me over the years that ESPN's contracts with many cable providers state that should ESPN offer its own streaming services, cable providers will no longer be bound by restrictions forcing them to include ESPN in their core lineups, which will only accelerate the number of skinny bundle options without ESPN.

It's a damned if you do and damned if you don't scenario for ESPN, and even if ESPN does all the right things here and offers a truly compelling streaming platform customers really enjoy -- there's simply no getting around the fact that this transition is still going to really hurt.

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]]>rock-and-a-hard-placehttps://www.techdirt.com/comment_rss.php?sid=20170815/11444638006Wed, 16 Aug 2017 15:42:00 PDTOnce Again, Rather Than Deleting Terrorist Propaganda, YouTube Deletes Evidence Of War CrimesMike Masnickhttps://www.techdirt.com/articles/20170812/01102937985/once-again-rather-than-deleting-terrorist-propaganda-youtube-deletes-evidence-war-crimes.shtml
https://www.techdirt.com/articles/20170812/01102937985/once-again-rather-than-deleting-terrorist-propaganda-youtube-deletes-evidence-war-crimes.shtml
It really was just last week that we were discussing the problems of telling platforms like YouTube to remove videos concerning "violent extremism" because it's often tough to tell the difference between videos that many people think are okay and ones that those same people think are not. But in that post, we also linked back to a story from 2013 in which -- after getting pressure from then Senator Joe Lieberman -- YouTube started removing "terrorist" videos, and in the process deleted a channel of people documenting atrocities in Syria.

YouTube is facing criticism after a new artificial intelligence program monitoring "extremist" content began flagging and removing masses of videos and blocking channels that document war crimes in the Middle East.

Middle East Eye, the monitoring organisation Airwars and the open-source investigations site Bellingcat are among a number of sites that have had videos removed for breaching YouTube's Community Guidelines.

Again, there are no easy answers here. You can certainly understand why no platform wants to host actual terrorism propaganda. And platforms should have the right to host or decline to host whatever content they want. The real issue is that we have more and more people -- including politicians -- demanding that these platforms must regulate, filter and moderate the content on their platform to remove "bad" speech. But in the over 4 years I've been asking this question since that last time we wrote about the shut down of the channel documenting atrocities, no one's explained to me how these platforms can distinguish videos celebrating atrocities from those documenting atrocities. And this gets even more complicated when you realize: sometimes those are the same videos. And sometimes, letting terrorists or others post the evidence of what they're doing, people are better able to stop that activity.

There is plenty of "bad" content out there, but the kneejerk reaction that we need to censor it and take it down ignores how frequently that is likely to backfire -- as it clearly did in this case.

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]]>take-a-step-back-and-rethinkhttps://www.techdirt.com/comment_rss.php?sid=20170812/01102937985Wed, 16 Aug 2017 13:29:00 PDTThe MPAA Narrative About Piracy Flips To Danger From Pirate Sites Now That It Has Lost The Moral ArgumentTimothy Geignerhttps://www.techdirt.com/articles/20170815/14462038008/mpaa-narrative-about-piracy-flips-to-danger-pirate-sites-now-that-it-has-lost-moral-argument.shtml
https://www.techdirt.com/articles/20170815/14462038008/mpaa-narrative-about-piracy-flips-to-danger-pirate-sites-now-that-it-has-lost-moral-argument.shtml
For years, years, the MPAA's public fight against piracy has chiefly consisted of a moral argument against it. Proclamations of the end of movies, the downtrodden future of filmmakers, and claims about piracy being equatable to outright theft were the tools of a Hollywood lobbier that itself exhibited the most underhanded sort of tactics in its attempts to get the internet to stop being the internet. It seems facile to state that this moral argument failed to find any purchase with the public, as filesharing went mainstream anyway. The reasons for this should be rather obvious: the arguments the MPAA made and the dooms it foresaw for itself and its industry were provably false. File sharing and piracy are a thing, yet movies still make gobs of money, allowing the MPAA to pay its executives the sort of handsome sums reserved for successful agencies. Still, Hollywood kept to its talking points. Piracy is wrong. Morally wrong.

But it seems that even the MPAA is ready to concede that it has fully lost this argument with the public. The latest from those that worked for the MPAA appears to be that it now wants to switch narratives from a moral argument to one of public danger.

The MPAA's former VP of Worldwide Internet Enforcement says that the industry narrative on piracy is no longer based on trying to get people to act ethically. Hemanshu Nigam says the discussion today is based around the dangers that pirate sites can pose to those who visit them. Few listened before, will they listen now?

Hemanshu Nigam is a former federal prosecutor, ex-Chief Security Officer for News Corp and Fox Interactive Media, and former VP Worldwide Internet Enforcement at the MPAA. In an interview with Deadline this week, he spoke about alleged links between pirate sites and malware distributors. He also indicated that warning people about the dangers of pirate sites has become Hollywood’s latest anti-piracy strategy.

“The industry narrative has changed. When I was at the MPAA, we would tell people that stealing content is wrong and young people would say, yeah, whatever, you guys make a lot of money, too bad,” he told the publication. “It has gone from an ethical discussion to a dangerous one. Now, your parents’ bank account can be raided, your teenage daughter can be spied on in her bedroom and extorted with the footage, or your computer can be locked up along with everything in it and held for ransom.”

Now, while Nigam works for the DCA (Digital Citizens Alliance), and the DCA is in part funded by the MPAA, it's worth carefully examining his and the MPAA's stance here to see whether this tactic will be any more effective than the previous moral argument. I think it's likely to fail, for several reasons. The first, as the TorrentFreak post points out, is that those that pirate content are consumers in the business sense. They are a form of customer for the sites that offer this sort of pirated content and they have all the same whims and wills of any paying customer. In other words, a site that lures the public in with pirated content for the purpose of deploying malware to them isn't going to keep its traffic for long.

In the Deadline piece, however, Nigam alleges that hackers have previously reached out to pirate websites offering $200 to $5000 per day “depending on the size of the pirate website” to have the site infect users with malware. If true, that’s a serious situation and people who would ordinarily use ‘pirate’ sites would definitely appreciate the details. For example, to which sites did hackers make this offer and, crucially, which sites turned down the offer and which ones accepted?

It's important to remember that pirates are just another type of consumer and they would boycott sites in a heartbeat if they discovered they'd been paid to infect them with malware. But, as usual, the claims are extremely light in detail. Instead, there's simply a blanket warning to stay away from all unauthorized sites, which isn't particularly helpful.

These sorts of blanket statements to stamp out piracy generally have the ring of a scare tactic for these reasons. Still, scare tactics can certainly work. Will this one? Again, I think not, due to a point we made earlier: file sharing is now mainstream. How many readers of Nigam's interview will be able to easily say that the doom he's warning them of hasn't happened to them as they've engaged in file sharing? The number is going to be quite large, it stands to reason. Rather than the scare tactic working, then, this will come off more like a Reefer Madness for piracy, an analogy everyone from TorrentFreak to the author of the Deadline interview seems to be making. If that happens, the DCA and MPAA take yet another hit to their credibility. There is even evidence that the public generally isn't listening to this latest argument of danger and those that are, are not particularly impressed.

Earlier this year the DCA launched a video campaign, enrolling 15 attorney generals to publish their own anti-piracy PSAs on YouTube. Thus far, interest has been minimal, to say the least. At the time of writing the 15 PSAs have 3,986 views in total, with 2,441 of those contributed by a single video contributed by Wisconsin Attorney General Brad Schimel. Despite the relative success, even that got slammed with 2 upvotes and 127 downvotes.

A few of the other videos have a couple of hundred views each but more than half have less than 70. Perhaps most worryingly for the DCA, apart from the Schimel PSA, none have any upvotes at all, only down. It’s unclear who the viewers were but it seems reasonable to conclude they weren’t entertained.

Not a great start for this narrative shift, to be sure. The public is steadily becoming more educated on the dangers of malware and viruses, as well as the proper security strategies for their electronic devices. Because of that, vague doomsayers warning of the digital apocalypse stemming from file sharing sites that have only become more popular aren't likely to find a great deal of fertile ground for their efforts.

On a related note, is all of this really easier and more effective than simply coming up with better ways to make money in the digital economy?

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]]>that-won't-workhttps://www.techdirt.com/comment_rss.php?sid=20170815/14462038008Wed, 16 Aug 2017 11:55:00 PDTWall Street Merger Mania Is Driving Us Toward One Single, Horrible ISP - Probably Named ComcastKarl Bodehttps://www.techdirt.com/articles/20170815/10434038003/wall-street-merger-mania-is-driving-us-toward-one-single-horrible-isp-probably-named-comcast.shtml
https://www.techdirt.com/articles/20170815/10434038003/wall-street-merger-mania-is-driving-us-toward-one-single-horrible-isp-probably-named-comcast.shtml
Many consumers are still reeling from a Charter, Bright House Networks and Time Warner Cable merger that left users with slower speeds, worse service, and higher prices. Other broadband consumers are still struggling with a bungled Frontier acquisition of Verizon assets that left users with prolonged outages and even worse customer service than the shitshow they already enjoyed. As we've seen for decades, this kind of mindless consolidation traditionally only benefits the companies involved, particularly in a market where real competition is in short supply.

This growth for growth's sake is one of the major reasons Comcast -- and its horrible customer service (which didn't scale with the company's expansion because that would have cost money) -- exists. And Wall Street's relentless thirst for growth at all costs is a major reason these companies can't simply focus on being the best "dumb pipes" possible, instead focusing their attentions on expanding into markets they have little expertise in (see Verizon's ingenious plan to hoover up failed 90s brands and pander to Millennials). When they can't succeed because they're out of their depth, they try to tilt the playing field (killing net neutrality).

There's oodles of history lessons here, and there's every indication we intend to learn nothing from them. With the ink barely dry on Charter's troubled deal, and the Trump administration signaling that no merger is too big or too absurd, Wall Street analysts have been positively giddy this year pondering megamergers in telecom that had previously been unthinkable on anti-competitive or antitrust grounds. That has included heavy pushes for a Sprint acquisition of T-Mobile or a Verizon bid to buy Comcast -- the massive, obvious anti-competitive impact of both deals be damned.

"Charter is pretty much an equal rival in size and scope to Comcast at this point, at least with regards to subscriber numbers. Each company has somewhere in the neighborhood of 25 million customers. For the two to merge outright would leave one dominant cable company in the country, with about half of the entire nation’s subscribers — from coast to coast, and in many of the states in between — under a single umbrella."

Granted there's no guarantee such a deal will happen. Wall Street stock jocks often like to float rumors then profit off of the herk and jerk of stock prices caused by the half-truths they themselves create. But should Comcast be able to swing such a deal, we could be looking at a supernova of anti-competitive dysfunction, the likes of which made Comcast's well documented issues seem charming.

Consider that cable's monopoly was already blossoming thanks to the countless telcos which have effectively stopped trying to compete -- in large part because Wall Street thinks spending money to upgrade your networks is a fool's errand. Then ponder the fact that the current FCC is busy gutting any and all meaningful oversight of these companies, allowing them to inevitably engage in all manner of anti-competitive shenanigans, from arbitrary and punitive usage caps, to net neutrality and privacy violations.

This all may sound like hyperbole, but it's a future that's very much under construction. And the folks giddily contemplating the "looming synergies" of such monumental coagulation are building it with absolutely zero concern for the impact on consumers, startups, small businesses or the health of the internet. Telecom sector executives and the folks paid to cheer their every decision have every intention of taking the already dismal Comcast experience, injecting it with steroids, and setting it loose on a market with no organic competitive or regulatory checks and balances. And by the time most notice the negative repercussions, these same folks will already be hyping the next wave of mindless consolidation.

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]]>merge-ALL-the-thingshttps://www.techdirt.com/comment_rss.php?sid=20170815/10434038003Wed, 16 Aug 2017 10:42:00 PDTImpostor Sending Out DMCA Notices In Chaturbate's Name Now Targeting Techdirt URLsTim Cushinghttps://www.techdirt.com/articles/20170815/18505938010/impostor-sending-out-dmca-notices-chaturbates-name-now-targeting-techdirt-urls.shtml
https://www.techdirt.com/articles/20170815/18505938010/impostor-sending-out-dmca-notices-chaturbates-name-now-targeting-techdirt-urls.shtmlA couple of weeks ago, I wrote about a long series of questionable DMCA notices I thought had been issued by online onanism portal Chaturbate. The takedown requests appeared to have been generated by a faulty algorithm with no human vetting involved. Many of those I examined appeared to target names of Chaturbate broadcasters, but without any of the precision one normally associates with the word "target." Sites named for delisting included geographical research, an Amazon page for a book about the Hadron Collider, track meet records collections, and even Chaturbate itself.

After some discussion with Chaturbate, it was determined someone is filing notices in Chaturbate's name, but without Chaturbate's official blessing. The scattershot, extremely prolific approach was now harming Chaturbate's reputation, tying it to bogus DMCA notices targeting all sort of non-infringing content. (I have since updated the original post to reflect the my conversations with Chaturbate and offer my apologies for naming the wrong party in the original post.)

Whoever's performing these bogus takedowns hasn't stopped. Chaturbate's legal rep has been asking Google for more details on the impostor requests. Google is looking into it, but so far has only provided an incredibly long list of likely auto-generated Gmail addresses as the source of these bogus notices, which now number into the thousands.

While we continue to work towards discovering who's behind these bogus notices, there have been some interesting developments. First, the impostor is now including Techdirt URLs, including the original post and my user page, in their takedown requests.

Second, whoever's doing this appears to have read my post. The issuing party has changed from Chaturbate LLC to Multi Media LLC. This is the name Chaturbate uses when it issues takedown requests. I never used the name in the updates to the post but did link to an example of a genuine Chaturbate takedown notice, as supplied to me by Chaturbate's representatives.

This would seem to indicate whoever's behind the bogus takedowns is aware multiple parties are trying to expose them. The DMCA notices containing Techdirt URLs contain almost nothing but adult-themed URLs, suggesting the TD pages may have been added in an attempt to bury the story. It still could be a faulty algorithm is flagging anything containing words like "Chaturbate," but the relative lack of unrelated sites suggests a slightly more targeted approach is being taken, even though there's still an emphasis on quantity over quality.

The other theory is the post hasn't been read, but the impostor has received challenges from Google when submitting notices under the Chaturbate LLC name. A little research may have uncovered the fact Chaturbate's legitimate takedown service only issues takedowns under the Multi Media LLC name.

If the impostor is reading these posts, they might want to remember the perjury side of it doesn't cover the URLs targeted for takedown, but rather the assertion they represent the rightsholders listed in the notices. According to Chaturbate, this impostor doesn't. All rights are retained by each individual Chaturbate broadcaster and Multi Media LLC makes no claims otherwise when issuing takedown notices on behalf of its clients. The impostor, however, makes these claims for several performers in each takedown request and does so under the names of companies they don't work for or represent. We're still trying to find out who's behind this and will keep you posted as this investigation proceeds.

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]]>doubling-downhttps://www.techdirt.com/comment_rss.php?sid=20170815/18505938010Wed, 16 Aug 2017 10:35:00 PDTDaily Deal: The Complete Machine Learning BundleDaily Dealhttps://www.techdirt.com/articles/20170816/10032138012/daily-deal-complete-machine-learning-bundle.shtml
https://www.techdirt.com/articles/20170816/10032138012/daily-deal-complete-machine-learning-bundle.shtml
Dive into the world of self-driving cars, speech recognition technology and more with the $39 Complete Machine Learning Bundle. Over 10 courses, you will learn about pattern recognition and prediction and how to harness the power of machine learning to take your programming to the next level. Discover quant trading, how to use Hadoop and MapReduce to tackle large data sets, how to create a sentiment analyzer with Twitter and Python, and much more.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

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]]>good-deals-on-cool-stuffhttps://www.techdirt.com/comment_rss.php?sid=20170816/10032138012Wed, 16 Aug 2017 09:29:00 PDTStories Claiming DNC Hack Was 'Inside Job' Rely Heavily On A Stupid Conversion Error No 'Forensic Expert' Would MakeKarl Bodehttps://www.techdirt.com/articles/20170814/11490537992/stories-claiming-dnc-hack-was-inside-job-rely-heavily-stupid-conversion-error-no-forensic-expert-would-make.shtml
https://www.techdirt.com/articles/20170814/11490537992/stories-claiming-dnc-hack-was-inside-job-rely-heavily-stupid-conversion-error-no-forensic-expert-would-make.shtml
While we wait for the Mueller investigation to clearly illustrate if and how Russia meddled in the last election, there's no shortage of opinions regarding how deep this particular rabbit hole goes. While it's pretty obvious that Putin used social media and media propaganda to pour some napalm on our existing bonfires of dysfunction, just how much of an impact these efforts had on the election won't be clear until a full postmortem is done. Similarly, while Russian hackers certainly had fun probing our voting systems and may have hacked both political parties, clearly proving state involvement is something else entirely.

Quite fairly, many folks have pushed for caution in terms of waiting for hard evidence to emerge, highlighting the danger in trusting leaks from an intelligence sector with a dismal track record of integrity and honesty. There's also the obvious concern of ramping up tension escalation between two nuclear powers. But last week, many of those same individuals were quick to highlight several new stories that claimed to "completely debunk" Russia's involvement in hacking the DNC ahead of last year's election. The problem? These reports were about as flimsy -- if not flimsier -- than the Russian hacking theories they supposedly supplanted.

In fact, these reports took things one step further by claiming that the hack of the DNC was something committed solely by someone within the DNC itself. This particularly overlong, meandering piece by The Nation, for example, claimed to cite numerous anonymous intelligence sources who have supposedly grown increasingly skeptical over the "Russian hacking narrative." Quite correctly, the report starts out by noting that while there's oodles and oodles of smoke regarding Putin's involvement in the election hacks, the fire (hard evidence) has been hard to come by so far:

"Lost in a year that often appeared to veer into our peculiarly American kind of hysteria is the absence of any credible evidence of what happened last year and who was responsible for it. It is tiresome to note, but none has been made available. Instead, we are urged to accept the word of institutions and senior officials with long records of deception. These officials profess “high confidence” in their “assessment” as to what happened in the spring and summer of last year—this standing as their authoritative judgment.

But it's then that's where things get a little weird. The report repeatedly proclaims that a laundry list of anonymous "forensic investigators, intelligence analysts, system designers, program architects, and computer scientists of long experience and strongly credentialed" have been hard at work "producing evidence disproving the official version of key events last year." But one of the key conclusions by these experts -- and a key cornerstone for of all of these stories -- makes absolutely no sense.

The reports lean heavily on anonymous cybersecurity experts calling themselves "Forensicator" and "Adam Carter," who purportedly took a closer look at the metadata attached to the stolen files. Said metadata, we're breathlessly informed, indisputably proves that the data had to have been transferred from inside of the DNC network and not over the internet, since the internet isn't supposedly capable of such transfer speeds:

"Forensicator’s first decisive findings, made public in the paper dated July 9, concerned the volume of the supposedly hacked material and what is called the transfer rate—the time a remote hack would require. The metadata established several facts in this regard with granular precision: On the evening of July 5, 2016, 1,976 megabytes of data were downloaded from the DNC’s server. The operation took 87 seconds. This yields a transfer rate of 22.7 megabytes per second.

These statistics are matters of record and essential to disproving the hack theory. No Internet service provider, such as a hacker would have had to use in mid-2016, was capable of downloading data at this speed. Compounding this contradiction, Guccifer claimed to have run his hack from Romania, which, for numerous reasons technically called delivery overheads, would slow down the speed of a hack even further from maximum achievable speeds."

That reads like a semi-cogent paragraph, but it's largely nonsense. 22.7 megabytes per second (MB/s) sounds impossibly fast if you don't know any better. But if you do the simple conversion from megabytes per second to megabits per second necessary to determine the actual speed of the connection used, you get a fairly reasonable 180 megabits per second (Mbps). While the report proclaims that "no internet service provider" can provide such speeds, ISPs around the world routinely offer speeds far, far faster -- from 500 Mbps to even 1 Gbps.

And despite the report oddly pooh pooh'ing Romanian broadband's "delivery overheads," many Romanian cities actually have faster internet connectivity than either Russia or in the States (check out Akamai's global broadband rankings). Bernie Sanders learned this last year when he unintentionally pissed off many Romanians when trying to highlight the dismal state of U.S. connectivity. Even then, the hacker in question could have used any number of tricks to hide his or her location and real identity from a high-bandwidth vantage point, so the claim that the hacker couldn't achieve 180 Mbps through a VPN is simply nonsense.

Obviously this raises some questions about what kind of cyber-sleuths we're talking about when they can't do basic conversions or look at some fairly obvious broadband speed availability charts. And it also raises some questions about why reporters thought flimsy anonymous experts were the perfect remedy to the other flimsy anonymous leaks they hoped to debunk. While The Nation couldn't even be bothered to do the simple calculation to determine the speed of the connection used by the hacker was relatively ordinary, in a story titled "Why Some U.S. Ex-Spies Don't Buy the Russia Story," Bloomberg actually did the conversion to get the 180 Mbps speed, and still somehow told readers that such speeds were impossible:

"The VIPS theory relies on forensic findings by independent researchers who go by the pseudonyms "Forensicator" and "Adam Carter." The former found that 1,976 MB of Guccifer's files were copied from a DNC server on July 5 in just 87 seconds, implying a transfer rate of 22.6 megabytes per second -- or, converted to a measure most people use, about 180 megabits per second, a speed not commonly available from U.S. internet providers. Downloading such files this quickly over the internet, especially over a VPN (most hackers would use one), would have been all but impossible because the network infrastructure through which the traffic would have to pass would further slow the traffic."

Yes, all but impossible! Provided you ignore that DOCSIS 3.1 cable upgrades and fiber connections deliver speeds consistently faster than that all around the world every day -- including Romania. False claims and sloppy math aside, after the Bloomberg column ran, several actual, identifiable intelligence experts also came forward doubting the legitimacy of the supposed intelligence sources for these stories altogether:

Where else besides twitter can you find two former CIA officers with experience in Russia knocking down a dodgy Bloomberg column? pic.twitter.com/t9zPk7tGG9

Surrounded by raised eyebrows, The Nation is now apparently reviewing its story for accuracy after numerous people highlighted that a major cornerstone of the report was little more than fluff and nonsense. Bloomberg has so far failed to follow suit.

So again, there's certainly every reason to not escalate hostility between the United States and Russia with many details still obfuscated and investigations incomplete. And there's also every reason to view reports leaning heavily on anonymous intelligence insiders skeptically after generations of distortions and falsehoods from those same agencies. That said, if you want to debunk the anonymous claims of a growing number of intelligence insiders who claim Russia played pinball with our electoral process, perhaps running into the arms of even more unreliable, anonymous intelligence sources -- without checking your math -- isn't your best path toward the truth.

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]]>don't trust anonymous sources unless you agree with themhttps://www.techdirt.com/comment_rss.php?sid=20170814/11490537992Wed, 16 Aug 2017 06:27:00 PDTFCC Begins Weakening The Definition Of Quality Broadband Deployment To Aid Lazy, Uncompetitive ISPsKarl Bodehttps://www.techdirt.com/articles/20170809/15282637966/fcc-begins-weakening-definition-quality-broadband-deployment-to-aid-lazy-uncompetitive-isps.shtml
https://www.techdirt.com/articles/20170809/15282637966/fcc-begins-weakening-definition-quality-broadband-deployment-to-aid-lazy-uncompetitive-isps.shtml
You may be shocked to learn this, but like most U.S. regulatory agencies, the FCC's top Commissioner spots are occassionally staffed by individuals that spend a bit too much time focused on protecting the interests of giant, incumbent, legacy companies (usually before they move on to think tanks, consultant gigs, or law firm policy work financed and steered by those same companies). In the telecom market these folks usually share some fairly consistent, telltale characteristics. One, they're usually comically incapable of admitting that there's a lack of competition in the broadband market.

Two, they go to great, sophisticated lengths -- usually via the help of economists hired for this precise purpose -- to obfuscate, modify, and twist data until it shows that broadband competition is everywhere and the market is functioning perfectly. After all, if the data shows that there's no longer a problem -- you can justify your complete and total apathy toward doing anything about it.

We've seen this cycle play out time and time again, and it's a major reason most of us have shitty broadband. Under former FCC boss Michael Powell (now shockingly the head lobbyist for the entire cable industry), the FCC repeatedly proclaimed that the broadband industry was so competitive, we didn't need rules, regulations, or consumer protections governing their behavior. And when anyone provided evidence that existing providers like Comcast were little more than walking shitshows, Powell would consistently insist that these complaints were utterly hallucinated.

This sort of behavior continued for a while under Obama-era FCC boss Julius Genachowski. But his successor, Tom Wheeler shocked a few people by actually acknowledging the industry wasn't competitive. Wheeler went so far as to raise the base definition of broadband to a more modern 25 Mbps, a decision the industry whined incessantly over. Why? By raising the bar, Wheeler was able to highlight how two-thirds of the country only have the choice of one broadband provider at current generation speeds.

Under the Telecommunications Act, the FCC is required by law to track broadband deployment and competition and -- if things aren't up to snuff -- the agency is mandated to "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market." But if you fiddle with how precisely broadband penetration and competition is measured, you can avoid having to do, you know, work to improve things. Enter Ajit Pai, whose agency this week quietly began fiddling with these determinations to the benefit of industry:

"But with Republican Ajit Pai now in charge, the FCC seems poised to change that policy by declaring that mobile broadband with speeds of 10Mbps downstream and 1Mbps upstream is all one needs. In doing so, the FCC could conclude that broadband is already being deployed to all Americans in a reasonable and timely fashion, and thus the commission could take fewer steps to promote deployment and competition.

Of course determining that an area has healthy and competitive broadband if a wireless provider can offer 10 Mbps is a major gift to incumbent ISPs. AT&T and Verizon have been working tirelessly to gut rules requiring they continue to provide cheaper, more reliable fixed-line broadband to rural areas and many less affluent cities, while also wiggling out of fiber upgrade obligations in countless markets. But wireless connections are significantly more expensive and less reliable, and in many smaller and more rural cities won't be a suitable fixed line replacement for a decade or more.

And while AT&T and Verizon's own data will insist that they provide 10 Mbps wireless to pretty much everywhere already, if you've ever driven across the nation with work to do you can probably attest to the fact this uniform coverage isn't real. And because the FCC is more concerned about pleasing incumbent broadband providers than actually beefing up competition for consumers, they're not going to be running out anytime soon to do field tests and fact check wireless carrier data proclaiming 10 Mbps is sprouting up everywhere like weeds.

No, the FCC's goal here is to technically lower the standard definition of quality broadband from 25 Mbps down, 4 Mbps to, to 10 Mbps down, 1 Mbps up. By doing this, Pai and friends can simply declare the broadband industry ultra-competitive, justifying their failure to actually do anything about the obvious fact that's simply not true. Of course it's not being explained that way in the agency's related notice of inquiry (pdf), the proposal couched under the pretense that we're simply modernizing the way the FCC operates -- or imposing new baseline wireless standards.

If you haven't carefully watched these ISPs and revolving regulators work tirelessly at protecting their uncompetitive empire for two decades, you might be inclined to believe that line of bullshit. But what the FCC's actually doing here is really quite simple: they're fucking with the math and lowering the bar to ankle height as a gift to the nation's lumbering, uncompetitive duopolies -- who'd like it very much if we left the existing, embarrassing status quo well enough alone.

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]]>It's-not-a-problem-if-we-say-sohttps://www.techdirt.com/comment_rss.php?sid=20170809/15282637966Wed, 16 Aug 2017 03:23:00 PDTProposed Law Would Turn US Borders Into Unblinking Eyes With A Thirst For Human DNATim Cushinghttps://www.techdirt.com/articles/20170815/11070838004/proposed-law-would-turn-us-borders-into-unblinking-eyes-with-thirst-human-dna.shtml
https://www.techdirt.com/articles/20170815/11070838004/proposed-law-would-turn-us-borders-into-unblinking-eyes-with-thirst-human-dna.shtml
Some senators are looking to turn US borders into the equivalent of London: cameras everywhere and a host of new incursions into travelers' and visitors' privacy. Cyrus Farivar of Ars Technica "outed" the not-yet-introduced bill -- titled "Building America's Trust Act" [wtf] -- since the supporting lawmakers have yet to formally announce their plans to make the US a worse country to live in, much less visit.

The one-pager [PDF] for the bill [PDF] (which is 186 pages long) makes it clear what the objective is: more surveillance, more boots on the ground, and green lights for law enforcement agencies located anywhere within 100 miles of the nation's borders. The bill calls for more judges, prosecutors, law enforcement officers, and inspectors, as well as walls, levees, fences -- whatever might further separate the US from its bordering neighbors (but only the southern one, apparently).

First off, there will be an increase in aerial surveillance. The bill calls for an increase in manned flight hours, as well as mandating drone flights at least 24 hours a day for five days a week. This would be in addition to increased use of surveillance equipment that can be mounted on vehicles or carried by humans. The DHS will also be allowed to draft the National Guard to perform border patrol duties and construct fences and walls and set up/monitor surveillance equipment.

The list goes on and on. (And on.) Customs and Border Patrol (and any agencies assisting it) will be exempted from 30 state and federal laws governing (among other things) use of public land should it be determined these ecology-protecting statutes "interfere" with the CBP's border patrolling efforts. The bill would also exempt border security efforts from the normal federal bidding process, allowing agencies to use non-competitive means to hire employees and source contractors. The bill would also raise staffing levels, providing for signing bonuses of up to $10,000 per new hire and an expanded waiver of the CBP's polygraph test requirement.

The law would allow border security agencies to obtain Defense Department surveillance gear, with an eye on round-the-clock surveillance in some form and increased gathering of biometric information. More specifically, the bill asks for this:

The Secretary shall create a system or upgrade an existing system (if a Department system already has capability and capacity for storage) to allow for storage of iris scans and voice prints of aliens that can be used by the Department, other Federal agencies, and State and local law enforcement for identification, remote authentication, and verification of aliens. The Secretary shall ensure, to the extent possible, that the system for storage of iris scans and voice prints is compatible with existing State and local law enforcement systems that are used for collection and storage of iris scans or voice prints for criminal aliens.

This will be fed by the DHS's biometric entry-exit collection, meaning it won't just be foreign visitors adding to the pile of biometric data. The law calls for the program to be put in place at all high traffic ports of entry (including major airports) within two years. As we've seen from previous pilot programs, there's no good way to ensure US persons aren't swept up in the biometric scanning. All we have are assurances these "inadvertent" collections will be siloed off from the DHS's foreigner collection.

Customs authorities will also be given power to demand biometric info from visa applicants and DNA will be collected from all detained immigrants, whether or not they're criminally charged. This information will then be shared with the State Department and the FBI.

From there, the law adds other politically-charged stipulations, like an entire subsection entitled "Stop Dangerous Sanctuary Cities Act." Also of note: the bill would allow law enforcement to seize everything from cash to bitcoins if they're suspected to be "criminal proceeds." It also strips away any mens rea protection from accusations of money laundering, allowing the government to seize money/charge suspects with a federal crime whether or not they knowingly engaged in criminal activity.

The whole package is basically a 186 pages of surveillance expansion and xenophobic legalese. The sole benefit of the bloated bill is it consolidates so many anti-foreigner objectives into a single PDF, saving opponents the trouble of having to track a few dozen similarly-minded bills. The limits on the collection and use of biometric data are almost nonexistent and there's nothing in it specifically ordering agencies to keep US citizens out of the data pile. A number of law enforcement agencies have already offered their endorsement of the bill, suggesting it's spent some time being circulated among proponents. Now, it's in the hands of the rest of the county where it's unlikely to see as unqualified support. It's a Patriot Act but for the border -- a hysteria-based bill that panders to the president's desires.

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]]>all-the-bad-lawmaking-in-one-large-PDFhttps://www.techdirt.com/comment_rss.php?sid=20170815/11070838004Tue, 15 Aug 2017 18:46:17 PDTSaudi Government Looking To Jail More Citizens For 'Harming Public Order' With Their Religious TweetsTim Cushinghttps://www.techdirt.com/articles/20170814/17253537997/saudi-government-looking-to-jail-more-citizens-harming-public-order-with-their-religious-tweets.shtml
https://www.techdirt.com/articles/20170814/17253537997/saudi-government-looking-to-jail-more-citizens-harming-public-order-with-their-religious-tweets.shtml
The internet may be an amazing communication tool, but it's also a handy way for governments to keep an eye on their citizens. Saudi Arabia uses the internet for multiple things -- mainly monitoring dissent and controlling communication.

An expansive cybercrime law, coupled with longstanding statutes outlawing criticism of the official religion, have made it easy for the Saudi government to jail critics and cut off communications platforms. Bloggers have been imprisoned and encrypted services asked for technical details presumably in hopes of inserting the government into private conversations.

A group of Twitter users will be indicted in Saudi Arabia on charges of harming public order for threatening the "safety and moderate ideology of society" through extremism, according to a statement on state news agency SPA.

The country's chief prosecutor summoned the Twitter users on Sunday, the statement said, without naming them or specifying how many were accused.

The substance of the offending tweets can only be speculated about. Presumably, they violated the kingdom's self-image and/or that of the prevailing religion. More statements were made by officials, but none of them offered clarity on the tweets' content. Instead, they were contradictory statements using the Saudi version of "We're big supporters of free speech, but.."

In a separate statement, Public Prosecutor Sheikh Saud bin Abdullah al-Muajab said he respected freedom of opinion but asserted his office's power to pursue cases against those who promote hatred or sectarianism, or mislead public opinion.

"Misleading public opinion" becomes a much vaguer complaint when the government defines what the public's opinion should be and enforces it with dissent-crushing laws. There's no church/state separation at play either, so religious leaders are pretty much political leaders, and "misleading public opinion" could be nothing more than a disagreement over interpretations of a religious text. In most countries, the worst that might happen is a ruined Thanksgiving dinner. Over there, it's jail time and a possible beating.

In an absurd twist, Saudi Arabia will host 2020's G20 summit -- an annual gathering of world leaders, most of which hail from a freer world. Because of this, some leaders will be hesitant to condemn the Saudi kingdom for its continued oppression of speech. If things don't change tremendously over the next few years, participating in the G20 summit will amount to tacit approval of the Saudi government's abuses and will legitimize ongoing censorship.

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]]>perpetual-crackdown-modehttps://www.techdirt.com/comment_rss.php?sid=20170814/17253537997Tue, 15 Aug 2017 15:33:37 PDTOne Twitter Account's Mission To Make White Supremacists Very, Very FamousTimothy Geignerhttps://www.techdirt.com/articles/20170815/09314538001/one-twitter-accounts-mission-to-make-white-supremacists-very-very-famous.shtml
https://www.techdirt.com/articles/20170815/09314538001/one-twitter-accounts-mission-to-make-white-supremacists-very-very-famous.shtml
After the ugly stain that was this past weekend, when a group of "protestors" took to the streets of Charlottesville to "protest" the removal of a statue commemorating some loser who lost a war because he was a loser, there has been an unfortunate strain of calls to crack down on speech rights of these imbeciles. It's exactly the wrong sort of reaction for a number of reasons, not the least of which is that starting down the road to relieving the rights to speech you don't like today can come back and bite you in your ass tomorrow. Our own Tim Cushing's take on how important it is to defend the speech rights of those we dislike the most is among the best I've read, but it focuses on the need to rally support for speech rights in the face of outrage. Left unsaid is at least one potential solution to the speech polution that occurrs when a bunch of race-obsessed jackwagons decide to throw a party: more speech and expression.

The @YesYoureRacist account began tweeting pictures of demonstrators on Saturday, asking, "If you recognize any of the Nazis marching in #Charlottesville, send me their names/profiles and I'll make them famous."

It's been credited with outing a University of Nevada student, who acknowledges attending a rally in Charlottesville Friday night but maintains he is not a racist.

That student, of course, then went on to say that he was only attending the rally to preserve a statue of Robert E. Lee because he believes "the replacement of the statue will be the slow replacement of white heritage within the United States", which, you know... racist. If you've seen the now famous photos of the white supremacists marching, this student is the one you've seen screaming while wild-eyed. That's notable for a very specific reason: the people at these types of rallies used to wear hoods over their heads. And for good reason, as they didn't want the wider public to be able to identify them alongside their detestable beliefs.

But not so in Charlottesville. Instead, the ralliers marched with their faces in full view of the public, allowing the man behind @YesYoureRacist to retweet the photos to his thousands of followers, identify them by name, find out where they go to school and/or work, and then contact those places to inform them they have a racist in their midst thus allowing them to take action if they choose. None of this, by the way, should be confused with doxxing, the process by which jerks on Twitter detail personal information from those that are trying to keep personal information secret. No, these protesters marched proudly in public, splashing their easily-identifiable faces all over the newswire. @YesYoureRacist, through speech and expression, is now simply making them even more famous.

This isn't to say that all of this will go on without a hitch. It won't. Already there have been mistakes made in identifying some involved in the white supremacist marches. One man was misidentified when followers of @YesYoureRacist decided that passing resemblances without any further checking were enough to vilify a man who was not at the rally, is not a white supremacist, and in fact runs a laboratory dedicated to helping people. Because extremism is everywhere these days, this man was threatened to the point of his deciding his home was no longer safe.

But that is a failure of a good idea gone too far, not of the idea of supercharging the fame of horrible people itself being bad. What is needed there is better speech and sleuthing, not an end to it. Free speech and expression gets the messiest in these sorts of endeavors, after all, and those mistakes don't nullify the overall good being done. As Ken "Popehat" White points out in a useful tweetstorm more speech is good, but so is a careful and proportional response:

So, identifying people and contacting their employer to complain is "more speech." I'm not opposed in all circumstances. /1

Now, if those currently calling for limiting the speech rights of white supremacists and Nazis had their way, how many less faces would we have in the photos of people that outed themselves? Far, far less, obviously. As I've always said, a big part of the reason I defend the rights of racists to be racists is because I want the racists to reveal themselves. And then folks like @YesYoureRacist can go about making them famous.

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]]>save-safe-harborshttps://www.techdirt.com/comment_rss.php?sid=20170815/11314338005Tue, 15 Aug 2017 11:55:00 PDTCourt Says CFAA Isn't Meant To Prevent Access To Public Data, Orders LinkedIn To Drop Anti-Scraper EffortsTim Cushinghttps://www.techdirt.com/articles/20170814/20031837999/court-says-cfaa-isnt-meant-to-prevent-access-to-public-data-orders-linkedin-to-drop-anti-scraper-efforts.shtml
https://www.techdirt.com/articles/20170814/20031837999/court-says-cfaa-isnt-meant-to-prevent-access-to-public-data-orders-linkedin-to-drop-anti-scraper-efforts.shtml
Some good pushback against the CFAA (Computer Fraud and Abuse Act) has been handed down by a federal court. LinkedIn, which has frequently sued scrapers under both the CFAA and DMCA, just lost an important preliminary round to a company whose entire business model relies on LinkedIn's publicly-available data.

hiQ Labs scrapes LinkedIn data from users whose accounts are public, repackages it and sells it to third party recruiters and HR departments, allowing companies to track employee skills and get a read on which employees might be planning to jump ship.

LinkedIn didn't care much for another business piggybacking on its data (and likely cutting back ever so slightly on the number of third parties it sells this data to), so it sued hiQ, alleging the scraping of publicly-available data violated the CFAA. This has completely backfired. hiQ has obtained an injunction preventing LinkedIn from blocking its scraping efforts. [h/t Brad Heath]

In short, the court finds the hardships are all on hiQ's side: if LinkedIn blocks the scraping, the company will likely close. The decision [PDF], importantly, notes this isn't what the CFAA was put in place to guard against. It also adds that if it sided with LinkedIn's arguments, the internet itself would suffer.

In summary, the balance of hardships tips sharply in hiQ's favor. hiQ has demonstrated there are serious questions on the merits. In particular, the Court is doubtful that the Computer Fraud and Abuse Act may be invoked by LinkedIn to punish hiQ for accessing publicly available data; the broad interpretation of the CFAA advocated by LinkedIn, if adopted, could profoundly impact open access to the Internet, a result that Congress could not have intended when it enacted the CFAA over three decades ago.

And there's more bad news for LinkedIn:

Furthermore, hiQ has raised serious questions as to whether LinkedIn, in blocking hiQ's access to public data, possibly as a means of limiting competition, violates state law.

LinkedIn tried to argue continued access by hiQ would threaten its own business, mainly through supposed violations of its customers' privacy. It notes many of its users (50 million to be exact) have deployed LinkedIn's "Do Not Broadcast" option, which limits notifications about changes to accounts. Out of the 50 million users, LinkedIn claims three have alleged harm from third-party data collection. LinkedIn says hiQ's scraped determinations about poachable employees could harm users whose accounts remain public, but are utilizing the "Do Not Broadcast" feature.

The court is not entirely unsympathetic to LinkedIn's arguments. But it is mostly unsympathetic, partially because LinkedIn appears to be vastly overstating the privacy concerns of its users...

These considerations are not without merit, but there are a number of reasons to discount to some extent the harm claimed by LinkedIn. First, LinkedIn emphasizes that the fact that 50 million users have opted into the "Do Not Broadcast" feature indicates that a vast number of its users are fearful that their employer may monitor their accounts for possible changes. But there are other potential reasons why a user may opt for that setting. For instance, users may be cognizant that their profile changes are generating a large volume of unwanted notifications broadcasted to their connections on the site. They may wish to limit annoying intrusions into their contacts.

Second, LinkedIn has presented little evidence of users' actual privacy expectation; out of its hundreds of millions of users, including 50 million using Do Not Broadcast, LinkedIn has only identified three individual complaints specifically raising concerns about data privacy related to third-party data collection. Docket No. 49-1 Exs. A-C. None actually discuss hiQ or the "Do Not Broadcast" setting.

...and partially because LinkedIn doesn't appear to care all that much about its users' privacy.

Third, LinkedIn's professed privacy concerns are somewhat undermined by the fact that LinkedIn allows other third-parties to access user data without its members' knowledge or consent. LinkedIn offers a product called "Recruiter" that allows professional recruiters to identify possible candidates for other job opportunities. LinkedIn avers that when users have selected the Do Not Broadcast option, the Recruiter product respects this choice and does not update recruiters of profile changes. However, hiQ presented marketing materials at the hearing which indicate that regardless of other privacy settings, information including profile changes are conveyed to third parties who subscribe to Recruiter. Indeed, these materials inform potential customers that when they "follow" another user, "[f]rom now on, when they update their profile or celebrate a work anniversary, you'll receive an update on your homepage. And don't worry – they don't know you're following them." LinkedIn thus trumpets its own product in a way that seems to afford little deference to the very privacy concerns it professes to be protecting in this case.

As for the alleged CFAA violations, the court find nothing that agrees with LinkedIn's legal theory public information anyone can access somehow turns into unauthorized access when a company accesses it via a scraper.

A user does not "access" a computer "without authorization" by using bots, even in the face of technical countermeasures, when the data it accesses is otherwise open to the public.

But it goes further, laying down in explicit detail how ruling in LinkedIn's favor would severely damage open access on the internet.

Under LinkedIn's interpretation of the CFAA, a website would be free to revoke "authorization" with respect to any person, at any time, for any reason, and invoke the CFAA for enforcement, potentially subjecting an Internet user to criminal, as well as civil, liability. Indeed, because the Ninth Circuit has specifically rejected the argument that "the CFAA only criminalizes access where the party circumvents a technological access barrier," Nosal II, 844 F.3d at 1038, merely viewing a website in contravention of a unilateral directive from a private entity would be a crime, effectuating the digital equivalence of Medusa. The potential for such exercise of power over access to publicly viewable information by a private entity weaponized by the potential of criminal sanctions is deeply concerning...

[T]he CFAA as interpreted by LinkedIn would not leave any room for the consideration of either a website owner's reasons for denying authorization or an individual's possible justification for ignoring such a denial. Website owners could, for example, block access by individuals or groups on the basis of race or gender discrimination. Political campaigns could block selected news media, or supporters of rival candidates, from accessing their websites. Companies could prevent competitors or consumer groups from visiting their websites to learn about their products or analyze pricing. Further, in addition to criminalizing any attempt to obtain access to information otherwise viewable by the public at large, the CFAA would preempt all state and local laws that might otherwise afford a legal right of access (e.g., state law rights asserted by hiQ herein). A broad reading of the CFAA could stifle the dynamic evolution and incremental development of state and local laws addressing the delicate balance between open access to information and privacy – all in the name of a federal statute enacted in 1984 before the advent of the World Wide Web.

The case will still proceed forward, but the outlook isn't that bright for LinkedIn. It has been ordered to drop any anti-circumvention efforts it put in place within 24 hours and rescind the cease-and-desist orders it sent to hiQ. On top of there being zero chance it will prevail on its CFAA claims, the company will now have to defend itself against state law counterclaims by hiQ. This legal effort -- probably deployed in hopes of achieving a quick settlement -- is going to add up to real dollars in legal fees alone.

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]]>perverting-a-bad-lawhttps://www.techdirt.com/comment_rss.php?sid=20170814/20031837999Tue, 15 Aug 2017 10:45:14 PDTThe Snopes Fight Is Even Way More Complicated Than We Originally ExplainedMike Masnickhttps://www.techdirt.com/articles/20170815/01335038000/snopes-fight-is-even-way-more-complicated-than-we-originally-explained.shtml
https://www.techdirt.com/articles/20170815/01335038000/snopes-fight-is-even-way-more-complicated-than-we-originally-explained.shtml
If you read our post a few weeks ago about the very messy legal fight between Snopes and Proper Media, you may recall that we spent many, many words explaining how the story was way, way, way more complicated than most in the media were portraying it. And significantly more complicated than how Snopes was portraying it. And we thought we did a pretty good job explaining all of that. Indeed, one of our commenters noted: "Wow. This couldn't possibly get any messier."

He was wrong. It turns out it's even messier. And it involves accusations of tax scams and shell companies, none of which came out in the last discussion on all of this. So, buckle in.

In our original story, we fact checked Snopes' claim that it was being "held hostage" by "a vendor." As we pointed out this was, at best, misleading, but the full story was hellishly complex and involved a nasty divorce, poor choices in equity structure, some poorly drafted contractual agreements and much, much more. It was not nearly as simple as saying that one party was holding the other hostage. I'm not going to repeat all of the details here (that original post was pretty damn long), but the real issue came down to the fact that the top execs at Proper Media had ended up purchasing 50% of Snopes' parent company, Bardav, due to a (very acrimonious) divorce between the two (previously) married founders. But because the company was an S Corp., Proper Media itself could not hold the shares, only individuals could. So the shares were split up between the top execs. Proper now claims that (1) those individuals were all really holding the shares on behalf of the company and (2) it accused Bardav's other shareholder, David Mikkelson, of some fairly egregious business practices and handling of corporate funds. No matter what, though, this was not a case of merely "a vendor" holding the site "hostage."

The legal claim, though, felt weak -- if Proper really wanted to own the shares as a company, it should have figured out a way to do something, such as converting the company to a traditional C corp. And, indeed, so far, the case does not appear to be going Proper's way.

In a tentative ruling issued ahead of Friday’s hearing, Judge Judith Hayes of the San Diego Superior Court decided in favor of Bardav in two crucial causes of action.

Proper Media cannot remove Mikkelson as a director of the company, the judge said.

“Proper Media does not have standing to seek removal of Mikkelson. … Plaintiffs have not presented sufficient evidence to prove fraudulent acts,” Hayes wrote in her decision.

The judge also granted Bardav’s request for Proper Media to release the advertising revenue the firm has withheld from the company.

Meanwhile, folks on both sides of the fight have reached out to us directly to supply more information, leading us to discover that what was already hellishly complex, is much, much more so. One of the complicating factors -- that was mostly a sideshow piece of the original story -- was that one of the Proper Media execs, Vincent Green, who had received 3.33% of Bardav in the equity sale had "flipped sides" during the dispute. In short, when Proper Media divvied up the shares, Green got some (much less than Proper's two top execs, but still a bunch). However in the spring, he stopped working for Proper and started working for Snopes directly (while at Proper he'd done a lot of work for Snopes already). From the complaint (and from our last story):

On Saturday, February 18, 2017, Richmond and Schoentrup had an in-person conversation with Green at Proper Media’s offices. When confronted, Green admitted that he was not acting in the best interest of Proper Media. After this conversation, Green never returned to the Proper Media office, and performed no further work for Proper Media. On Tuesday, February 21, 2017—the second business day after the conversation described above—without Richmond’s or Schoentrup’s knowledge or consent, Green removed Richmond’s and Schoentrup’s access to the Snopes content-management system, instructed three Proper Media employees not to return to work, and removed thousands of dollars of computer equipment from the Proper Media offices used by these three employees. On information and belief, Green did so in conspiracy with and at the direction of Mikkelson.

[....]

On or about March 8, 2017, Green added himself to the “Snopes.com Staff” page on Snopes, which lists his role as “Business Development”. Snopes.com Staff, http://www.snopes.com/snopes-staff/ (last accessed Apr. 27, 2017; archived at https://perma.cc/BRX7-C99L).

On March 10, 2017, again without Richmond’s or Schoentrup’s knowledge or consent, Green removed Snopes-related data from Proper Media’s communication and project-management tools, including Slack and Asana. On information and belief, Green did so in conspiracy with and at the direction of Mikkelson.

[....]

Also on March 10, 2017, Mikkelson purported to terminate the General Services Agreement, to be effective in 60 days, i.e., on or about May 9, 2017.

On or about April 1, 2017, Mikkelson removed Richmond’s and Schoentrup’s access to the bank account used for Snopes business by Bardav and Proper Media.

On April 3, 2017, Green gave written notice—from his Snopes email account—of his resignation from Proper Media.

During the weeks between February 18, 2017 and April 3, 2017, Green admitted that he was doing no work for Proper Media, and was instead working with Mikkelson at Bardav. Despite doing no work, until April 3, 2017, Proper Media continued to pay Green, and contributed to Green’s health-insurance premiums.

Now, when I had first read this, I'll admit that a little voice in the back of my head wondered about the opening of that story -- the line about how "Green admitted that he was not acting in the best interest of Proper Media." What the hell does that mean? But there wasn't much more info, so I didn't follow up. However, I was unaware that there was a parallel lawsuit going on. Not only was Proper Media suing Bardav over what it claimed was David Mikkelson's questionable behavior with Bardav, it separately sued Green. Proper's complaint about Green is pretty similar to what's already written in its complaint against Bardav, but focusing on breach of contract and similarly related claims against Green.

However it's Green's cross complaint that contains the fireworks (amusingly, Green sent us this document saying that it showed how the story was "not as messy as you think." No, it's messier.). First up, about that odd meeting in February, where Proper's 2 top guys, Christopher Richmond and Drew Schoentrup, supposedly got Green to admit that he was not acting in the best interests of Proper Media, well, Green has somewhat different take on that meeting.

In mid-February 2017, Schoentrup and Richmond were in the United States. On
February 18, 2017, Schoentrup and Richmond called a meeting with Green. During this
meeting, Schoentrup and Richmond told Green that they felt that Green did not respect them,
that Green did not work well with Richmond, and that the personality conflict between
Richmond and Green had made it impossible for Green to continue working for Proper Media.
Schoentrup and Richmond further told Green that he should leave Proper Media, clear out his
office, and not return to work.

Immediately after the February 18, 2017 meeting, Richmond sent Green a
message stating:

will work out some proposals for the buy out and get back to you. No need to
come to the office. You can start passing over any projects, accounts, logins, etc
to us. And of course you will still be getting your salary this month while we
make the transition.

That's a bit different than the way it's described in Proper's lawsuit, where the whole "getting fired" thing as well as the "don't come into the office" part was left out. And how did things get to this stage where Green and the others were fighting? Well, some of that actually goes back to some contentions over the purchase of Bardav/Snopes shares:

Schoentrup, Richmond, Green, Miller, and Dunn were interested in acquiring an
interest in Bardav as early as summer 2015. In early 2016, Green learned that Schoentrup had
begun clandestine discussions with Barbara Mikkelson ("Barbara"), David Mikkelson's
estranged wife and co-owner of Bardav, to acquire Barbara's 50% interest in Bardav. When
Green confronted Schoentrup about this, Schoentrup showed Green a draft purchase agreement
that had Schoentrup and Richmond acquiring Barbara's interest to the exclusion of the other
minority shareholders in Proper Media, namely Green, Miller, and Dunn. The opportunity to
purchase 50% of Bardav was an opportunity that came to Schoentrup and Richmond as a result
of their work for Proper Media and was an opportunity that did not belong solely to Schoentrup
and Richmond. Indeed, the opportunity would not have existed at all except for Green's diligent
work on the Snopes.com account. As such, Green insisted that all Proper Media members be
given the opportunity to participate in any acquisition of Barbara's 50% interest.

And, indeed, that's how it eventually worked out. Of course, to me at least, the fact that there appeared to be some contention over this at such an early stage (with Richmon and Schoentrup potentially keeping the others out of the deal) make it that much more egregious that issues over actual ownership weren't taken care of earlier. It seems by that point alone that the likelihood of some of the minority shareholders leaving the company should have been obvious and if Proper wanted to claim it truly controlled the shares, it should have taken concrete steps to make that true contractually. It did not.

But we're just getting started here. In order to purchase the 50% of Bardav from Barbara, Proper Media needed to secure some financing. In the original post and in David Mikkelson's telling of the story, the amount was quite high. And then (per Green's cross-complaint) the following happened:

On August 19, 2016, Diamond Creek Capital sent a draft loan
agreement to Schoentrup. Schoentrup forwarded the draft loan agreement to Richmond, Green,
Miller, and Dunn. In this email, Schoentrup stated:

Here is a draft of the loan agreement. I haven't reviewed, and I am not sure how
much we will actually end up taking.

The biggest issue for the union [e.g., Green, Miller, and Dunn] is that you are
personally listed on the loan docs and joint and severally liable -- meaning should
we default, Diamond Creek can seek payment in full from any one of us
individually -- basically they will go where the money is. To mitigate any
heartburn that this may cause, Chris and I will execute an indemnity agreement
basically saying that should Diamond Creek come after anyone other than us,
we will step in and assume that liability and the costs incurred.

Green claims that Schoentrup and Richmond never actually executed that indemnity agreement, and thus "misrepresented" things. This will come up again soon in connection to all of this, so consider it foreshadowing as we move on.

As part of the loan agreement, Proper Media had to create an "operating agreement" that Green claims he felt pressured into signing, and again throws some shade at Schoentrup, claiming that he misrepresented things to Green, and that he never explained that he was operating in Proper Media's interests. Which... okay... but by this point, I'm surprised that Green himself didn't find an attorney to review anything he was signing, as he's already indicated that he was uncomfortable with some aspects of this deal. But he's about to get a lot more uncomfortable by his telling of the story.

You see, before the loan itself was made, and before Green was supposedly pressured into signing this operating agreement, he argues that Richmond and Schoentrup had begun to "implement a tax avoidance scam." From Green's filing:

Additionally, in mid-2016, Schoentrup and Richmond began to implement a tax
avoidance scam involving Schoentrup and Richmond relocating to Puerto Rico in order to take
advantage of Puerto Rico's Promotion of Export Services Act ("Act 20") and/or Puerto Rico's
Act to Promote the Relocation of Individual Investors to Puerto Rico ("Act 22").

Schoentrup moved to Puerto Rico on or about July 1, 2016. Richmond moved to
Puerto Rico on or about January 1, 2017.

One of the requirements for individuals residing in Puerto Rico to avoid US.
federal income tax (and thereby receive the minimal or zero income tax benefits of the Puerto
Rico Act 20 and/or Act 22) is that the taxpayer cannot receive any income from a U.S. company.
Therefore, in order to reap the tax benefits of Act 20 and/or Act 22, Schoentrup and Richmond
could not receive any salary or distributions from PrOper Media.

Schoentrup resigned his employment with Proper Media on or about July 1, 2016.
Richmond resigned his employment from Proper Media on or about January 1, 2017.

In order for Schoentrup and Richmond to continue receiving money from Proper
Media, they concocted a scheme whereby they created PubLife, a Puerto Rico limited liability
company, and said that Proper Media would sign a "consulting" agreement with PubLife.
Instead of making distributions to members, Proper Media would pay a "consulting fee" to
PubLife and would compensate its other members (Green, Miller, and Dunn) with year-end
"bonuses" in lieu of membership distributions. According to Schoentrup and Richmond, the
amount of each of the PubLife "consulting fee" and the year-end bonuses to Green, Miller, and
Dunn would be commensurate with each member's percentage ownership in Proper Media.
Being paid in "bonuses" instead of distributions would create negative tax consequences for
Green.

Green is informed and believed that, using the above scheme, Schoentrup and
Richmond intended not to pay any federal income tax on the money they received from Proper
Media through PubLife

>

26 United States Code section 7201 provides:

Any person who willfully attempts in any manner to evade or defeat any tax
imposed by this title or the payment thereof shall, in addition to other penalties
provided by law, be guilty of a felony and, upon conviction thereof, shall be ?ned
not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not
more than 5 years, or both, together with the costs of prosecution

Green had serious concerns with the legality of Schoentrup and Richmond's tax
avoidance scheme. In particular, Green was concerned that Schoentrup and Richmond's PubLife
scheme crossed the line into illegal conduct. Green was particularly concerned about the impact
of such potential tax law violations on Proper Media. Green voiced his concerns with
Schoentrup's and Richmond's PubLife scheme as early as June 2016 during a series of meetings
with Schoentrup and Richmond.

So, that's a bit of a twist, huh? There doesn't seem to be anything in the exhibits that Green filed with the complaint to substantiate these claims, but... uh... that's certainly notable. If the above is accurate, it would mean that technically Shoentrup and Richmond weren't even employed by Proper Media at the time they purchased the shares in Bardav, which they're telling a court is really owned by Proper Media. But, of course, all this happened prior to the loan agreement and the plan to buy into Bardav/Snopes, so it still confounds me that Green didn't think to get a lawyer to make sure this was all legit.

From there, things continued to go sour in the days leading up to that February meeting which becomes key:

Schoentrup and Richmond also revealed that PubLife intended to search for and
potentially acquire websites. The opportunity of website acquisition was specifically within the
scope of Proper Media's business and to the extent that PubLife acquired any such websites,
Schoentrup and Richmond would be taking a corporate opportunity of Proper Media. Green told
Schoentrup and Richmond that he objected to PubLife acquiring any such websites or otherwise
taking any of Proper Media's corporate opportunities.

Schoentrup's and Richmond's relocation to Puerto Rico had other deleterious
effects on Proper Media. Schoentrup and Richmond appeared to stop working on Proper
Media's day-to-day affairs and were generally unreachable for large periods of time. On
numerous occasions, Green found himself having to explain to other Proper Media employees
why Richmond or Schoentrup were unavailable to assist with projects they had formerly worked
on at Proper Media. Green voiced these concerns to Schoentrup as well.

When Richmond left for Puerto Rico in January 2017, Green once again voiced
his concerns regarding Schoentrup and Richmond's tax avoidance scheme including the potential
legal implications, especially for Proper Media. Green also made it known to Schoentrup and
Richmond that their absence from Proper Media's offices was having a negative impact on the
company's operations.

And that then brings us up to date (in Green's retelling) to that February meeting where (in Proper's version) Green "admitted that he was not acting in the best interest of Proper Media" and never returned to the office again. And, in Green's version, it's that Schoentrup and Richmond told Green he wasn't respecting them, and that due to personality conflicts he should "clear out his office, and not return to work."

From there things continue to disintegrate. Shoentrup and Richmond apparently try to buyout Green's shares in Proper Media as part of his termination, but that included wanting Green to give Shoentrup and Richmond the voting power over Green's shares in Bardav/Snopes. Green claims he pushed back on that. And soon after this, that whole issue of who was liable in the event of default was brought back up:

In connection with negotiating the sale of his Proper Media membership interest
back to the company, Green requested that the parties address his obligations under the DCC
Loan Agreement. Green proposed that the parties agree to certain specified payments to address
Green's portion of the loan amount.

In response, on April 24, 2017, Richmond sent Green a series of emails, stating:

[W]e can't sign anything for the debt as we are each liable for the entire debt
amount.

Considering the adverse effect you've caused to the company there is no way we
will sign something saying you are responsible for a portion of the debt. You are
responsible for 100% of the debt.

After Green responded that he understood that he had signed a personal guarantee
with respect to the DCC Loan and was simply trying to address his portion of the loan,
Richmond responded:

You didn't just sign a personal guarantee. The loan documents say we are each
responsible for the entire debt amount, not just a portion based on equity lines.
And I'm afraid your actions already open us up to being in default of the loan.
We will be in touch once we figure out what to do.

So, yeah. Remember when I said above to remember the promise to indemnify? Yeah.

A few weeks later, in early May, Schoentrup demanded that Green go into mediation with Proper Media. Green responded saying he (FINALLY!) wanted to speak to a lawyer first, and further notes that the Proper Media Operation Agreement that they had all signed said that they agreed "to enter mediation before filing suit against any other Member...." But before Green could reply again, the lawsuit was filed.

As I said, this got a lot more complicated. Frankly, no one comes out of this looking very good -- and, yet again, this seems like another case where people should have brought in lawyers (or better lawyers) much, much earlier in the process. It's unfortunate that all this dirty laundry is airing out in public. It feels like most of this stuff could have been solved amicably very early on if the contracts and the buyouts had been clearer. But, through a series of bizarre moves on the part of almost everyone, things get more and more messed up, and eventually it all comes out in court. Bardav/Snopes doesn't come out of this looking great and neither does Proper Media. But on the legal issue, it seems that Snopes is likely to prevail at least on the bigger issues.

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]]>good-deals-on-cool-stuffhttps://www.techdirt.com/comment_rss.php?sid=20170815/09371238002Tue, 15 Aug 2017 09:47:14 PDTDefending Hateful Speech Is Unpleasant But Essential, Even When Violence Is The End ResultTim Cushinghttps://www.techdirt.com/articles/20170814/15422237996/defending-hateful-speech-is-unpleasant-essential-even-when-violence-is-end-result.shtml
https://www.techdirt.com/articles/20170814/15422237996/defending-hateful-speech-is-unpleasant-essential-even-when-violence-is-end-result.shtmlA weekend full of ugliness has resulted in the predictable: calls for the government to step in and do something about "hate speech." For some reason, a bunch of people decided the removal of a statue commemorating the loser of the First American Civil War was something they simply couldn't abide with, even though the "history" they were seeking to "preserve" generally celebrates the last holdouts against the abolishment of slavery.

It's not as though they were seeking to preserve history a government might feel like erasing. No one involved in the protest of the Robert E. Lee statue removal sought to build the US equivalent of the Holocaust Museum and needed the stone homage to serve an appropriate place of dishonor among the rest of the relics. This devolved into violence -- first hand-to-hand altercations, but later involving a vehicle driven directly into a crowd of counter-protesters, resulting in multiple injuries and one death.

While the president issued a tepid "hate and violence are bad" statement, people all over the internet were taking this as an indication free speech in this country has gone too far. (His second statement, delivered two days later, was much better.) Predictably, those attacking entities like the ACLU (which defended the white nationalist assemblage's right to hold a protest of the statue's removal) were mainly interested in shutting down speech they didn't like, while somehow preserving the sort of the speech they did like.

Glenn Greenwald has a long post at The Intercept detailing the misguided attacks on the ACLU as a result of its defense of the white nationalist protesters. As he points out, the left -- despite its reputation for tolerance of all races, creeds, colors, and sexes -- is a frequent supporter of government regulation of speech. Many on the left still cling to the mistaken belief the government has already outlawed "hate speech," when it has done nothing of the sort.

Those on the right would like to see the ACLU kicked out of Constitutional discussions as well. Greenwald notes the ACLU has been similarly attacked for such things as arguing for due process rights for accused terrorists.

The problem is: rights are rights. Those availing themselves of Constitutional rights usually aren't sympathetic protagonists. But it's the worst of the worst that need defending. No one starts throwing around stupid legislation when tepid, middle-of-the-road statements are made. No one fires off bogus lawsuits when unoffensive statements are delivered.

Many on both sides -- right and left -- find this concept hard to grasp. Some people believe there's a legal bright line between speech and hate speech, when in most cases, it's just a subjective measurement of how much these people empathize with the disputed statements. Hypocrisy abounds. Unfortunately, hypocrisy isn't limited to the rank-and-file. Legislators are able to at least threaten serious damage to the First Amendment by writing and sponsoring bills targeting the "worst of the worst." But most are written so broadly and badly, they can't survive a constitutional challenge.

Even our president partakes in the speech hypocrisy. He has threatened to open up libel laws and refers to any source of info he doesn't like as "fake news." But he still enjoys the First Amendment protections he's reluctant to extend to his opponents, even as he extols police brutality or encourages supporters to attack protesters.

That the worst speech needs the most defending isn't news to anyone here at Techdirt. This point has been made repeatedly. But every time something like what happened in Charlottesville happens, the point needs to be driven home again.

Some believe the curbing of speech would somehow prevent violence. But words and actions are two different things. We have plenty of laws in place to deal with assault and vehicular homicide. What we don't need is more laws regulating speech in response to criminal activity. Certainly some of the people making the nastiest statements are also perpetrators of violence. But laws that criminalize speech extend culpability from doing to simply thinking.

There's a huge gap between defending someone's right to speak and defending what they're saying. As some people need to be constantly reminded, free speech is not speech without consequences. Ignorant, nasty, brutish statements deserve the criticism they receive. What they shouldn't be met with is calls for the government to step in and tell everyone what sort of speech is permitted. Those protesting the statue's removal had every right to be heard, no matter how ridiculous their arguments and beliefs.

It also should be clear (but often isn't) that defending someone's First Amendment rights isn't the same thing as defending their actions. It's not even something as minimal as complicity. The ACLU stepping up to defend the white nationalist's right to assemble doesn't not make them an enabler of the violence that followed. That violence was the end result was possibly to be expected, but allowing the government to selectively revoke certain citizens' rights as a precaution isn't really the path we want to go down.

Finally, there's one more point to consider when calling for the curtailment of free speech for the "worst of the worst:" it is utterly ineffective, even if it "works." Here's Greenwald:

How can anyone believe that neo-Nazism or white supremacy will disappear in the U.S., or even be weakened, if it’s forcibly suppressed by the state? Is it not glaringly apparent that the exact opposite will happen: by turning them into free speech martyrs, you will do nothing but strengthen them and make them more sympathetic?

The last thing anyone needs is for the worst of worst to become cause celebres because of their odious viewpoints. No one should be in a hurry to make it more difficult to easily recognize small-minded, hateful people. Their ignorance should always be on display. Burying them just makes them more dangerous and more apt to resort to violent means to make their points.